Brown v. Davis, 6424.

• Decision Date: 22 May 1926
• Docket Number: No. 6424.,6424.
• Citation: 13 F.2d 256
• Parties: BROWN v. DAVIS.
• Court: U.S. District Court — Western District of Missouri

13 F.2d 256 (1926)

BROWN v. DAVIS.

No. 6424.

District Court, W. D. Missouri, W. D.

May 22, 1926.

Harold E. Neibling and E. J. Levis, both of Kansas City, Mo., for plaintiff.

Morrison, Nugent, Wylder & Berger, of Kansas City, Mo., for defendant.

REEVES, District Judge.

Plaintiff has filed his motion to remand this cause to the state court. The grounds of his motion are (a) that there is not a diversity of citizenship; (b) that the defendant waived its right in the state court to have the cause removed to the federal court.

The facts are that the plaintiff filed his suit in a state court on the 13th day of January, 1926. The amount sued for then was $3,000, and on that date the defendant entered his appearance in the following language: "Comes now the above-named defendant, waives the issuance and service of summons herein, and enters his appearance in the above-entitled cause."

The suit was returnable to the March term, 1926, of the circuit court of Jackson county, Mo., at Independence. Both the original petition and the entry of appearance showed this. On the 6th day of February, 1926, plaintiff filed an amended petition, wherein the amount of recovery sought was fixed at $25,000. The amended petition contained a marginal reference to the December term, 1925, of said court.

A petition for removal, with bond, pursuant to notice, was filed on February 18, 1926. The marginal reference contained in each of these papers referred to the March term, 1926. This was also true of the notice, required in removal matters. The petition for removal was verified by affidavit, and is supplemented by another affidavit to the effect that the defendant is a citizen and resident of Oklahoma City in the state of Oklahoma. On the question of the residence of the defendant, no opposing or counter affidavits were filed.

1. That there is a diversity of citizenship cannot be further considered. The defendant himself has filed an affidavit that he is and was a resident of the state of Oklahoma. The removal petition was verified by oath of Charles C. Byers, Jr., and such petition also contained an allegation of nonresidence. In the absence of contrary affidavits, the court must accept as fully proved that a diversity of citizenship existed.

2. The remaining question is whether the defendant, by his action in the state court, waived his right to remove the cause to this court. It is urged by plaintiff here that the filing of the amended petition in the state court devolved upon the defendant, after his appearance, the duty to plead to such amended petition, and that the time fixed within which such pleading could be filed expired before...